OTW Legal is tracking and participating in three current developments in U.S. law that could affect fans: (1) Fan-unfriendly proposals to change trademark law; (2) Attacks on LGBTQ+ expression online; and (3) Proposals to mandate technological copyright filtering on the Internet. We will keep advocating for fans in these areas, and in some cases, there are things you can do if you’re in the U.S.! If you want to know more, read on.
(1) Fan-Unfriendly Proposals to Change Trademark Law
The U.S. House of Representatives has passed a bill with the misleading name of “SHOP SAFE” that would place barriers and restrictions on online marketplaces, including the sorts of marketplaces that fans rely on, like eBay, Etsy, Kickstarter, Patreon, Redbubble, TeePublic, and many others. Although this bill is presented as being about “consumer protection,” that’s not really what it accomplishes – instead, it would reverse long-standing principles of trademark law, would give enormous power to trademark owners to take down fan material from e-commerce sites, and would even force e-commerce sites to try to filter out fan material before it even gets posted. It would harm markets for memorabilia, resale, fanart, and more. Although the OTW is focused on noncommercial fanworks, and this law wouldn’t affect the AO3 (which does not do any commerce at all), it would be terrible for fans on other sites.
Although SHOP SAFE has passed in the House, it is still pending in the Senate. The OTW is actively participating in direct efforts to explain to Senators why this bill would do more harm than good. If you’re in the U.S., you can help by contacting your Senators to do the same! One way to contact your senators is using the EFF’s e-mail tool.
Here are some resources to learn more about SHOP SAFE:
- From the EFF: https://www.eff.org/deeplinks/2022/02/shop-safe-will-stomp-out-online-sales-used-and-homemade-goods
- From Public Knowledge: https://publicknowledge.org/shop-safe-act-the-trademark-timebomb-masquerading-as-consumer-protection/
- From trademark law expert Eric Goldman: https://blog.ericgoldman.org/archives/2021/09/the-shop-safe-act-is-a-terrible-bill-that-will-eliminate-online-marketplaces.htm
(2) Attacks on LGBTQ+ expression online
We have heard from a lot of members about the (again, terribly mis-named) EARN IT Act, which has been introduced by the Senate Judiciary Committee. This bill, like SHOP SAFE, claims to do one thing, but actually does something very different. On its face, EARN-IT appears to be about curbing the availability of visually-depicted Child Sexual Abuse Material (“CSAM”) online – and if it were actually a tool for doing that, we would support it. AO3 bans the posting or embedding of CSAM (photos of actual children), and bans users for posting such material.
So why does the OTW care? Because EARN-IT is an attack on section 230, which is the law that makes online platforms able to host user-posted material, and it does so in a way that allows U.S. states – many of which can be influenced by powerful anti-LGBTQ+ lobbying groups – to define what constitutes a visual depiction of CSAM. It is also a massive attack on Internet user privacy, that could result in users’ private material being searched. This sort of legal change could have dramatic impacts on fans, fanart, and freedom of expression for LGBTQ+ youth.
EARN-IT would not affect the AO3 directly. EARN-IT is specifically and explicitly limited to visual depictions, and AO3 does not host any visual depictions at all — the only user-posted material that AO3 hosts is text-only. Any and all images visible on AO3 are hosted elsewhere and embedded by users in works. EARN-IT would therefore affect those platforms where the images are actually hosted, not AO3, where the images merely appear as the result of embedding links (the technological difference matters for this bill).
However, the implications of the legislation for fan communities mean that the OTW is monitoring the situation closely, and will take direct action based on how things develop. If you want to get involved yourself, the best way to do so is through our allies at the EFF, which is also monitoring closely and organizing user action. For more information and action items, visit the EFF's EARN-IT action page.
(3) Proposals to mandate technological copyright filtering on the Internet
The U.S. Copyright Office is convening roundtables to explore the imposition of “Standard Technical Measures,” which could require online platforms — like the AO3 — to engage in filtering. Filtering could require platforms to attempt to prevent the uploading of copyrighted material, or monitor or search their networks for copyrighted material — things that do not account well for the sorts of fair uses that fans and AO3 rely on. OTW has long stood against copyright filtering, which is not only harmful to free expression, but also technologically impossible. We have submitted many comments over the years opposing proposals like those contemplated by the Copyright Office, and on February 22, 2022, Legal Committee Member Rebecca Tushnet participated on the OTW’s behalf in this most recent round. We will continue to fight this fight, and will keep you informed as things develop!
The EFF links above also include pointers to email forms that fans in the U.S. can use to contact their representatives to urge them to take a stance against SHOP SAFE and EARN IT.